His Majesty the King - v. -, 2023 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 17 Date: January 6, 2023 Information: 991175638 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Andrea Kerpan Appearing: T. O'Hara For the Crown A. Pearse For the Accused JUDGMENT D.C. SCOTT , J INTRODUCTION [ 1 ] Andrea Kerpan is charged that on October 6, 2021, she operated a conveyance while her ability to do so was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, contrary to s. 320.14(1) (

a) of the Criminal Code . [ 2 ] She is also charged that she had a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1) (

b) of the Criminal Code . Both charges arise out of the same circumstances. [ 3 ] Ms. Kerpan alleges that her s. 8, s. 9 and s. 10(

b) Charter rights were violated and seeks exclusion of certain evidence. She abandoned her s. 7 Charter application after the in-car video from a second patrol car at the scene was disclosed during the trial. No footage from that video was introduced into evidence.

[ 4 ] Additionally, the accused argues that the Crown did not comply with the statutory requirements for the admissibility of the certificate of analyst in accordance with s. 320.32(2) of the Criminal Code . [ 5 ] The trial proceeded by way of a blended voir dire . The Crown called one witness, Cst. Evan Siemens, and tendered video evidence from inside the patrol car and at the police station. A Certificate of Qualified Technician and Certificate of Analyst were also received into evidence on the voir dire . Ms. Kerpan testified on the voir dire regarding the alleged s. 10(

b) breach only. [ 6 ] Counsel provided several authorities which I have read and considered. BACKGROUND [ 7 ] In the early morning hours of October 6, 2021, Cst. Siemens was on regular duty when he observed a vehicle being driven erratically. He followed the vehicle to a parking lot where he made a traffic stop. The vehicle was driven by the accused, Ms. Kerpan, who had with her a male passenger. Cst. Siemens detained the male for being intoxicated in a public place until Cst. Jimmy, Cst. McArthur, and Sgt. Gabruch arrived to assist. Cst. Siemens then turned his attention to Ms. Kerpan.

While she was still in her vehicle, the officer formed the belief that Ms. Kerpan had been operating a motor vehicle while impaired by alcohol or drug. He arrested her, placed her in his patrol vehicle, made a breath demand, and read her rights and warnings including her right to counsel. Ms. Kerpan indicated she did not know a lawyer but would like to speak with one. At the police station, Ms. Kerpan did speak with Legal Aid duty counsel. The breath test was then administered. The qualified technician provided Cst. Siemens with the breath test results in the form of a certificate.

The readings were 170 mg of alcohol in 100 ml of blood and 160 mg of alcohol in 100 ml of blood. ISSUES TO BE DECIDED [ 8 ] The following are the issues to be decided: 1 . Were Ms. Kerpan’s s. 8 and s. 9 Charter rights violated? Did the officer have the necessary reasonable grounds to make the breath demand? 2 . Was Ms. Kerpan’s s. 10(

b) Charter right to counsel violated? 3 . Did the Crown comply with the statutory requirements for admission into evidence of the Certificate of Analyst? 4 . Did the Crown prove beyond a reasonable doubt that the accused’s blood alcohol concentration exceeded the legal limit at the relevant time? 5 . Did the Crown prove beyond a reasonable doubt that the accused operated a conveyance while her ability to do so was impaired by alcohol or a drug? DISCUSSION Reasonable Grounds/s. 8 and s. 9 Charter [ 9 ] Ms. Kerpan submits Cst.

Siemens did not have reasonable grounds for making the breath demand and that he ought to have conducted an ASD test first. [ 10 ] The presence of “reasonable grounds” is both a statutory and constitutional requirement for a lawful breathalyzer demand. Without reasonable grounds, Ms. Kerpan’s detention would have been arbitrary under s. 9 of the Charter and the taking of breath samples an unreasonable search and seizure under s. 8 of the Charter . [ 11 ]

Section 320.28(1) of the Criminal Code provides that where an officer has reasonable grounds to believe a person has operated a conveyance while their ability to do so is impaired to any degree by alcohol or has committed an offence under s. 320.14(1) (b) (over .08), the officer may demand, as soon as practicable, that the person provide samples of breath necessary to enable a proper analysis. [ 12 ] The officer’s belief must be honest and rationally sustainable on an objective basis: R v Gunn , 2012 SKCA 80 at para 7 , 399 Sask R 170 [ Gunn ].

In other words, the officer must subjectively believe he has grounds, and that belief must be objectively reasonable. [ 13 ] The Court is required to determine whether the factors articulated by the officer were reliable and capable of supporting the officer’s belief: Gunn para 7 .

In making that determination, the question to be answered is whether, on the whole of the evidence, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired: Gunn para 8 . [ 14 ] The officer must be able to clearly articulate sufficient observations which would rationally and reliably support the officer’s belief of impairment on an objective basis: Gunn para 10 . The observations and circumstances articulated by the officer must be rationally capable of supporting the inference of impairment.

The Crown does not have to prove the inferences were true or accurate. [ 15 ] Further, the officer need only believe the individual’s ability to drive is impaired “to any degree”. Accordingly, the objective grounds are met where an officer has reasonable grounds to believe an individual’s ability to drive is even slightly impaired by alcohol consumption: Gunn para 9 . [ 16 ] Although prudent and easily arranged, the officer is not required to conduct sobriety tests or a roadside screening test: Gunn

para 21 . [ 17 ] Other inferences which might be rationally drawn from the circumstances, and for which there is an evidentiary basis, may serve either to undermine or reinforce the reliability of the inference of impairment: Gunn para 23 . [ 18 ] However, the test for reasonable grounds “will not be stymied when the factors which give rise to it are supportive of an innocent explanation”.

What is required is a reasonable probability, not proof beyond a reasonable doubt, a prima facie case, or proof on a balance of probabilities: R v Lofty , 2017 BCCA 418 , 357 CCC (3d) 516, interpreting R v MacKenzie, 2013 SCC 50 , [2013] 3 SCR 250, referenced in R v Chapman , 2020 SKCA 11 , 386 CCC (3d) 24. [ 19 ] The standard of “reasonable grounds to believe” must be assessed contextually, having regard to all the circumstances: R v Shinkewski , 2012 SKCA 63 , 399 Sask R 11. [ 20 ] In this case, the circumstances to be assessed are those available to Cst. Siemens at the time he formed his belief that Ms.

Kerpan’s ability to operate a conveyance was impaired. However, post-arrest or post-demand evidence may assist in the assessment of the reliability of the officer’s belief: Gunn para 20 . [ 21 ] Cst. Siemens testified that he formed the grounds for making the breath demand while Ms. Kerpan’s was still in her car. The basis for his belief was the nature of Ms. Kerpan’s driving and observations he made of her. [ 22 ] Cst. Siemens testified that he first observed the vehicle being driven by Ms. Kerpan as he drove southbound on the Preston Avenue overpass at Circle Drive.

At that time, he noticed a white Honda Civic turn west onto Willis Crescent. [ 23 ] He saw the vehicle drive over the curb or median that divided eastbound and westbound traffic. The officer estimated the vehicle was travelling at a low rate of speed, possibly 10 to 15 km per hour at the time. It proceeded across the road and up onto the sidewalk and drove directly into a light post mounted onto a 3-foot concrete round cylinder. The vehicle bounced off the post, started rolling backward, then continued travelling westbound on Willis Crescent.

It accelerated and continued at inconsistent speeds, braking randomly until it pulled into a parking lot at a pub where it came to a stop. The officer recalled the road conditions were good and the streets were well-lit at the time. [ 24 ] Cst. Siemens became concerned that the driver might be under the influence of alcohol or a drug, so he initiated a traffic stop. When the officer activated the emergency lights, an in-car video turned on. The video, commencing at 1:59:36 hours, was marked as Exhibit P-2 on the voir dire .

In court, the officer illustrated the vehicle’s movements on a Google map marked as Exhibit P-1 on the voir dire . [ 25 ] According to Cst. Siemens, a male got out of the passenger seat of the Honda and began waving his arms, yelling, swearing and approaching aggressively with clenched fists. The man had bloodshot eyes, beverage alcohol emanated from his breath, and he was staggering. [ 26 ] Cst. Siemens became concerned for his safety and radioed for backup. While waiting, the male passenger became more compliant allowing Cst. Siemens to handcuff and detain him for being intoxicated in public.

According to the in-car video, at 2:02:36 hours, Cst. Siemens placed the male passenger in his patrol car. [ 27 ] Cst. Jimmy and Cst. McArthur arrived on the scene together, while Sgt. Gabruch arrived separately. Csts. Jimmy and McArthur are shown on the video as early as 2:02:40 hours. [ 28 ] At 2:02:40 hours, Cst. Siemens returned to the driver still seated in the Honda and identified as the accused Andrea Kerpan. According to the officer, when asked for her driver’s licence, Ms. Kerpan thumbed through her wallet and appeared to have difficulty grasping the card. The officer also observed Ms.

Kerpan had glossy, slightly bloodshot and droopy eyes. She had what he described as delayed movements. Based upon these observations and the manner of driving, at 2:03:23 hours, Cst. Siemens arrested Ms. Kerpan for impaired operation of a conveyance. He handcuffed and searched her, after which she accompanied him to the patrol car. Cst. Siemens described her walk as a “delayed balance compromised type movement”. On the in-car video, difficulty walking was not apparent, but the officer was holding Ms. Kerpan’s arm. [ 29 ] At 2:04:04 hours, the male passenger was removed from the rear of Cst.

Siemens’s patrol car by Cst. Jimmy and Cst. McArthur, and Ms. Kerpan was placed in the rear of that same vehicle at 2:04:34 hours. She struggled entering the patrol car however, she was handcuffed at the time. She was informed that she was being audio and video recorded. According to Cst. Siemens, Ms. Kerpan was compliant and polite. [ 30 ] Cst. Siemens clearly articulated the factors he considered in arriving at his belief. He described the unusual and erratic nature of Ms. Kerpan’s driving.

He identified characteristics typically associated with impairment by alcohol, such as glossy, slightly bloodshot, droopy eyes, delayed movements, and some difficulty with manual dexterity when grasping her licence. He testified that her speech was slurred similar to that of other intoxicated people he had dealt with, including her passenger, although in cross-examination, Cst. Siemens acknowledged that slurred speech could not be heard on the video played in court. [ 31 ] The Court had the benefit of observing Ms. Kerpan on the in-car video within minutes of her arrest.

It was not apparent that her words were slurred. She seemed coherent in her questions and comments and her demeanour appeared to be appropriate for the circumstances. Nonetheless, Cst. Siemens had the benefit of observing Ms. Kerpan in real time and at close range while she was still in her own vehicle. I accept his testimony that her speech was somewhat affected. [ 32 ] I am satisfied Cst. Siemens’s subjective belief that Ms. Kerpan had committed an offence under s. 320.14(1) (

a) or s. 320.14(1) (

b) was honestly held. [ 33 ] I am also satisfied that, on the whole of the evidence, Cst. Siemens’s observations were rationally capable of supporting an

inference of impairment. Ms. Kerpan disobeyed the rules of the road by driving over a median from one side of a divided roadway toanother. After striking the light post, she did not stop to survey any damage to her vehicle but instead continued to drive. Thereappeared to be no reason or explanation for the aberrant nature of the driving given the road conditions were good and the area was well-lit. Ms. Kerpan exhibited some usual signs of alcohol consumption such as glossy, droopy eyes, delayed reactions and difficultyretrieving her licence. The events occurred in the early morning hours. Although Ms.

Kerpan was polite and compliant, she wasaccompanied by an intoxicated person. [34] While it might have been prudent for Cst. Siemens to perform an ASD test, he was not required to do so. [35] Taking into account all of the circumstances, I am satisfied that a reasonable person standing in the shoes of Cst. Siemenswould have believed Ms. Kerpan’s ability to operate a motor vehicle was impaired by alcohol or drug. I find that Cst. Siemens hadreasonable grounds for making the demand. [36] Therefore, Ms.

Kerpan has failed to establish on a balance of probabilities that her arrest was arbitrary under s. 9 of theCharter and that the taking of breath samples amounted to an unreasonable search and seizure under s. 8 of the Charter. Right to counsel [37]

Section 10(

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right.

As such, the police have a duty to (1) inform a detainee of their right to counsel without delay andof the existence and availability of Legal Aid; (2) provide a detainee with a reasonable opportunity to exercise that right; and (3) refrainfrom eliciting evidence until they have had a reasonable opportunity to do so. [38] The obligation of the police to facilitate a reasonable opportunity for the detainee to contact counsel is contingent upon thedetainee’s reasonable diligence in exercising the right to contact counsel: R v Bartle, (SCC), [1994] 3 SCR 173; R vWillier, 2010 SCC 37 at paras 33-34, [2010] 2 SCR 429 [Willier].

What constitutes reasonable diligence depends on the circumstancesas a whole. [39] Cst. Siemens testified that he read to Ms. Kerpan her right to counsel shortly after arrest in the patrol car. On the in-car video,Cst. Siemens can be heard, apparently reading from the standard pre-printed card, advising Ms. Kerpan of her right to consult counsel ofchoice and the availability of Legal Aid. Ms. Kerpan at first seemed hesitant and asked where she was being taken. The officer told herthey would be going to the police station and read to her again, her right to counsel.

When asked if she understood, she responded thatshe did. She also stated that she did not have a lawyer. The officer informed her that if she did not have a lawyer, Legal Aid wasavailable free of charge. When asked again if she wished to speak with a lawyer she responded “yes, I guess”. During cross-examination, the officer acknowledged that in the patrol car, Ms. Kerpan seemed confused at first. [40] According to Cst. Siemens, at the police station, Ms. Kerpan was processed at the book-in counter. From there, she was takento an observation room. Cst. Siemens again asked Ms.

Kerpan if she wished to speak with a lawyer and, again, she stated she did not haveone. [41] In court, Cst. Siemens could not recall his exact interaction with Ms. Kerpan and did not appear to have notes to which hecould refer. Nonetheless, he did recall that Ms. Kerpan stated she did not have a lawyer of her choice. Cst. Siemens wanted to make heraware that she had the option of contacting Legal Aid duty counsel for advice if she chose to do so because she had earlier indicated shewished to speak to a lawyer. Ms.

Kerpan was taken to a phone room, where a phone book was available, although he did not recallgiving the directory to her. Ms. Kerpan spoke with Mr. Hardy from Legal Aid by phone. Cst. Siemens confirmed Ms. Kerpan wassatisfied with her call. [42] Cst. Siemens testified as to his usual practice when arranging for an accused person to speak with counsel in detention. Typically, he would offer to look up a lawyer for her or for her to choose a lawyer from the phone book that was available, and if she didnot select a lawyer, the option of Legal Aid was offered.

The officer testified they could also do a Google search. However, he could notrecall if this was the practice he followed for Ms. Kerpan. Cst. Siemens testified he had no reason to deviate from his usual practice. [43] Ms. Kerpan, testified on the voir dire in relation to the alleged breach of her s. 10(

b) right to counsel. She acknowledged thatshe was asked while in the patrol car if she wished to speak to a lawyer. She responded that she did not have a lawyer but that she wouldlike to speak with one. [44] According to Ms. Kerpan, at the police station, while the officer was filling out paperwork, she was again asked if she wishedto speak with a lawyer to which she once again responded that she did not have a lawyer. She did not know the names of any lawyers,but she still wanted to speak with one. She testified that she was not given any resources from which to find a lawyer.

If she had her cellphone, she likely would have done a Google search. According to Ms. Kerpan, the officer placed her in a room, picked up a receiver andsomeone was on the other end of the line. [45] In cross-examination, Ms. Kerpan acknowledged that she was asked in the patrol car and again at the police station if shewished to speak with a lawyer. She acknowledged she was told twice that she could call any lawyer of her choosing. On both occasions,she responded that she did not have a lawyer. [46] Ms. Kerpan also testified that Cst.

Siemens asked her if she wanted him to call a lawyer for her, to which she responded thatshe did. She gave the following testimony regarding her exchange with Cst. Siemens at the police station: Mr. O’Hara: And so what—how did it come about that there was discussion about calling a lawyer at the station? A: Well, once I was in the room with him, that’s when he brought up calling a lawyer. Q: Okay. And did he ask you if you wanted to call a lawyer?

A: Yes. Q: Okay, And what did you say? A: I said, Well, I don’t have one I think again. Q: Okay. A: And then he says, well, do you want—you know, do you want me to call one for you? And I said yes. Q: Okay. Did you ask him if you could call a lawyer of your choice? A: No. [T-93, lines 31-49; T-94, lines 1-6] [ 47 ] Ms. Kerpan agreed that the officer did not tell her that she had to speak with Legal Aid. She was taken to a room where she spoke with Legal Aid duty counsel. She agreed that she told the officer she was satisfied with her call.

She did not ask the officer to call another lawyer, however, it was her impression that she did not have any other options at that time. [ 48 ] I am satisfied that Cst. Siemens took appropriate steps to ensure that Ms. Kerpan was informed of and understood her right to contact counsel of her choice and that if she wished, she could contact Legal Aid free of charge. Any initial confusion on Ms. Kerpan’s

part in the patrol car was resolved when Cst. Siemens repeated and explained her rights and she acknowledged that she understood. As such, Cst. Siemens discharged his obligation to inform Ms. Kerpan of her right to counsel. [ 49 ] Cst. Siemens’s testimony was not as helpful as it might have been regarding what he did to implement Ms. Kerpan’s right to counsel. To assist the Court in assessing Charter compliance, Cst. Siemens needed to do a better job of documenting his conversation with Ms. Kerpan and the steps taken. I place no weight on Cst. Siemens’s testimony regarding his usual practice.

The Court must assess Charter compliance based on what actually occurred. [ 50 ] Based upon the evidence that I accept, I make the following findings. Cst. Siemens accurately informed Ms. Kerpan of her right to counsel. Ms. Kerpan said that, while she understood, she did not have a lawyer but wished to speak with one. At the police station Cst. Siemens again asked Ms. Kerpan if she wished to call a lawyer and she once again responded she did not have one. There was a phone book in the phone room, but that Ms. Kerpan was not directed to it. Neither was she given other resources from which to locate a lawyer. Ms.

Kerpan did not ask to call a lawyer of her choosing. Cst. Siemens asked Ms. Kerpan if she wanted him to call a lawyer for her and she said that she did. Cst. Siemens facilitated the call to Legal Aid duty counsel, who spoke with Ms. Kerpan. Cst. Siemens asked her if she was satisfied with her call and she said that she was. [ 51 ] Of significance is that, according to Ms. Kerpan’s testimony, she agreed to speak with a lawyer who Cst.

Siemens offered to call. [ 52 ] The leading cases on right to counsel are R v Willier and R v McCrimmon, 2010 SCC 36 , [2010] 2 SCR 402 [ McCrimmon ]. [ 53 ] In Willier , the Court stated at para 42 : [42] As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview… [ 54 ] In R v Edgington , 2010 SKQB 381 , 367 Sask R 44 [ Edgington ], the accused, when asked if he wished to call a lawyer, stated he did not have a lawyer. The officer advised the accused that he could be put in touch with duty counsel.

The accused agreed. The Court held that absent extraordinary circumstances, the police are entitled to give a detainee credit for being able to think and decide for themself. If a detainee indicates that they choose a particular lawyer, it is appropriate for the police to accept that decision at face value and conclude the right to choose a lawyer has been provided. Accordingly, the Court held that the police did nothing wrong in suggesting that the accused speak with Legal Aid duty counsel.

By allowing the accused to consult with Legal Aid, the officer’s implementation obligation had been met and no Charter breach was established. [ 55 ] In R v McLeod, 2013 SKCA 28 , 409 Sask R 260 [ McLeod ], the accused told the officer he would like to speak with a lawyer, but he did not have one. The officer informed the accused that he could call a friend or family member to assist. The accused repeated that he did not have a lawyer. The officer told the accused that Legal Aid duty counsel was available. The accused agreed to speak with Legal Aid.

The Court of Appeal was of the opinion that the police had not failed to fulfill their implementation duty in these circumstances, citing with approval the cases of Edgington , McCrimmon and Willier . Leave to appeal to the Supreme Court was denied. [ 56 ] Defence counsel referred me to R v Foster, 2017 SKQB 344 [ Foster ] but submitted that it is distinguishable from the present case. In Foster , the officer read to the accused his right to counsel, and the accused indicated he understood that right.

The accused was hesitant and uncertain about who to call, so the officer asked the accused if he would like to call Legal Aid to which the accused responded that he would. The officer facilitated the call, and the accused was given several minutes to speak with duty counsel. The accused did not advise of any dissatisfaction with the advice he received, nor did he ask to speak with other counsel. The trial judge found no Charter breach and the appeal court agreed. [ 57 ] In Edgington , McLeod , and Foster , the officer expressly asked the detainee if they wished to speak with Legal Aid.

In the present case, according to her own testimony, Ms. Kerpan was asked by Cst. Siemens if she wanted him to call a lawyer for her and she

agreed. He called Legal Aid. [ 58 ] As in Foster , Ms. Kerpan was not informed that she could have a phone book or do a Google search. And, as in Foster , Ms. Kerpan did not ask for those resources. [ 59 ] It was appropriate for Cst. Siemens to accept at face value Ms. Kerpan’s agreement to speak with the lawyer who he would call and that she was satisfied with her call to Legal Aid. She did not indicate diligently and reasonably that the advice she received was inadequate: Willier .

It was reasonable for him to conclude that her right to choose a lawyer had been provided. [ 60 ] I conclude that, in these circumstances, Cst. Siemens properly informed Ms. Kerpan of her right to counsel and provided her with a reasonable opportunity to exercise that right before the taking of breath samples. [ 61 ] Ms. Kerpan has failed to establish, on a balance of probabilities, a breach of her s. 10(

b) Charter right to counsel. Statutory compliance [ 62 ] The Certificate of Qualified Technician was marked as Exhibit P-4 on the voir dire . The Crown also filed, as Exhibit P-5 on the voir dire , the Certificate of Analyst with regard to the alcohol standard used during the test. The air gas lot was identified as AG013201 on both certificates. [ 63 ] In closing argument, defence counsel argued the Crown did not comply with s. 320.32(2) of the Criminal Code in that it did not lead the necessary evidence for the admission of the Certificate of Analyst.

Specifically, the Crown failed to establish that the accused was given notice that it intended to produce the Certificate of Analyst at trial. Accordingly, the Certificate of Analyst could not be received into evidence. It was argued that without the Certificate of Analyst, the Crown could not rely on the presumption of accuracy, whereby the analyses of the blood samples are conclusive proof of Ms.

Kerpan’s blood alcohol concentration (BAC). [ 64 ] The Crown took the position that disclosure of the Certificate of Analyst along with the Certificate of Breath Technician and Notice of Intention to produce the Certificate of Breath Technician were sufficient to prove its case. [ 65 ]

Section 320.31 of the Criminal Code sets out what the Crown must prove in order to rely on the breath test results as conclusive proof of blood alcohol concentration (BAC), otherwise referred to as the presumption of accuracy. One requirement found in s. 320.31(1)(a), is that the qualified technician conduct a system blank test the result of which is not more than 10 mg of alcohol in 100 ml of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst [emphasis mine]. [ 66 ]

Section 320.32(1) provides that a Certificate of Analyst is evidence of the facts alleged in the certificate regarding the alcohol standard without proof of the signature or the official character of the person who signed the certificate. [ 67 ]

Section 320.32(2) provides that no certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate. [ 68 ] The issue in this case is whether the Crown gave Ms. Kerpan reasonable notice of its intention to produce a copy of the Certificate of Analyst at trial. [ 69 ] The Alberta Court of Appeal has interpreted s. 320.31 and s. 320.32 in R v Goldson , 2021 ABCA 193 , 406 CCC (3d) 84 [ Goldson ].

In that case, neither the Certificate of Analyst nor viva voce evidence of the analyst were tendered to prove the alcohol standard. The Court decided that without evidence that the alcohol standard was certified by the analyst, the Crown could not rely on the presumption of accuracy. [ 70 ] In Goldson , at paragraph 59 , the Court summarized the necessary procedures to be followed: [59] The scheme of the Amending Act contemplates the following procedures: a. An analyst certifies the alcohol standard: s. 320.31(1)(a). b. The QT conducts the system blank test and then tests the breath samples: s. 320.31(1). c.

The test results and Certificate of Analyst are disclosed to the accused: s. 320.34(1). d. The accused may apply for further disclosure: s. 320.34(2). e. The Crown has the option of introducing certificates from the analyst and QT, presumably in lieu of calling them to testify: s. 320.32(1). f. If so, Notice of Intention to produce the certificate in evidence is to be given by the Crown: s. 320.32(2) . g.

If notice is given, the accused can apply for an order requiring the attendance of the person who signed the certificate for the purpose of cross-examination: 320.32(3). [ 71 ] The Goldson decision has been followed by the Court of King’s Bench in this province. [ 72 ] In R v Kvasnak , 2021 SKQB 283 [ Kvasnak ], the Crown did not disclose the Certificate of Analyst to the defence, nor was it tendered as evidence. At trial, the Crown relied on the Certificate of Qualified Technician and viva voce evidence from the investigating

officer, who was also a qualified technician, to prove the alcohol standard. The Court in Kvasnak cited Goldson with approval, finding there is a statutory obligation on the part of the Crown to disclose the Certificate of Analyst as a prerequisite to the Crown relying on the presumption of accuracy. The failure to disclose the certificate of an analyst, or alternatively to call the analyst as a witness, prevented the Crown from relying on the breath samples as conclusive proof of the accused’s BAC.

As such, the Crown failed to prove all the elements required to secure a conviction: Kvasnak , para 59 . [ 73 ] In R v Pahl, 2021 SKQB 179 , because the case was transitional between the old and new statutory provisions, two versions of the Certificate of Analyst were tendered into evidence. In Pahl , the Court considered the case of Goldson to have persuasive value. The Court held that because the certificate was filed certifying the alcohol standard, the Crown was able to rely on the evidentiary shortcut.

The issues of disclosure and notice were not raised. [ 74 ] In R v Blomberg , 2022 SKPC 19 [ Blomberg ], a decision of Judge Brass of this Court, the Crown failed to file the Certificate of Analyst. As such, the Crown attempted to prove its case solely on the Certificate of Qualified Technician and their viva voce evidence. Judge Brass followed Goldson and Kvasnak and held that in addition to the Certificate of Qualified Technician, a Certificate of Analyst stating the alcohol standard used by the technician must be tendered into evidence or the analyst must testify.

In the absence of either the analyst’s certificate or testimony, the Crown could not rely on the presumption of accuracy and therefore did not establish the accused’s blood alcohol was over the permissible limit within two hours after he stopped driving his vehicle: Blomberg para 37 . [ 75 ] In Blomberg , there was no allegation that the Crown failed to disclose the Certificate of Analyst to the defence, as in Kvasnak . [ 76 ] In the present case, like in Blomberg , Defence counsel did not make an application for further disclosure, did not allege that they did not receive the Certificate of Analyst in the disclosure package, did not make an application to cross-examine the analyst and did not ask the officer any questions on this point in cross-examination.

The Certificate of Analyst was admitted on the voir dire without objection. Instead, defence counsel waited until closing argument to raise the issue. [ 77 ] The case of R v Turgeon , 2021 SKQB 236 [ Turgeon ] was also brought to my attention. On a

summary conviction appeal, the issue was whether the Certificate of Qualified Technician ought to have been admitted into evidence where the Crown had failed to give notice of its intention to produce it before trial as required by s. 320.32(2) . Instead, the notice was given to defence counsel at the time of trial.

The defence argued that the certificate must have been served closer to 60 days in advance of trial to allow for an application to cross-examine the technician under s. 320.32(4). [ 78 ] On appeal, the Court accepted the trial judge’s reasoning that, where defence counsel received notice after the trial had begun but did not ask for an adjournment to remedy the situation, and where there had been pre-trial discussions between counsel regarding the use of the certificate, the accused was not prejudiced and the preconditions for admissibility of the certificate were met.

If the defence had wished to cross-examine the technician on the contents of the certificate pursuant to s. 320.32(3), the time to seek that opportunity was at trial. [ 79 ] Following the reasoning in Turgeon , the time for Ms. Kerpan’s counsel to raise an objection regarding the use of the Certificate of Analyst in this case, was at the time it was tendered. Had defence counsel done so, an adjournment could have been granted to allow him the opportunity to apply to cross-examine the analyst if necessary.

Instead, defence counsel’s first objection was made during closing argument. [ 80 ] As in Turgeon , in the present case, when the Crown tendered the Certificate of Analyst in the voir dire , defence counsel did not object, nor seek an adjournment, alleging prejudice to the accused. Counsel waited until argument at the conclusion of the trial. [ 81 ] However, unlike in Turgeon , in the present case there was no evidence or information provided to the Court of pre-trial discussions between counsel regarding the use of the certificate at trial.

In the present case, while Crown counsel argued that the certificate was disclosed, there was no assertion that notice was given to the accused of the Crown’s intention to produce the certificate at trial. Defence counsel made no concession in that regard. [ 82 ] Cst. Siemens testified that following the breath test, the breath technician Cst. Vanthuyne provided Cst. Siemens with a copy of the Certificate of Qualified Technician. At the foot of that Certificate is a completed Notice of Intention to produce certificate, that appears to have been signed by Cst.

Vanthuyne on October 6, 2021, giving Andrea Evangeline Kerpan notice pursuant to s. 320.32(2) that the prosecution intended to produce and rely on the Certificate of Qualified Technician at trial. [ 83 ] However, there was no similar endorsement on the Certificate of Analyst. At the foot of that Certificate is a Notice of Intention to produce, which was not completed. No evidence was presented establishing that the Crown notified the accused of its intention to produce the Certificate. [ 84 ] Cst. Siemens testified that after charging Ms.

Kerpan with driving while over .08, he served upon her some documents, being the driver’s licence suspension and appearance notice. He was not asked about nor shown the Certificate of Analyst at any time during his evidence. [ 85 ] On the face of the Certificate of Analyst [P-5] is a stamp stating: “DISCLOSED A. Pearse March 07 2022”. Ms. Kerpan is represented by Mr. A. Pearse. [ 86 ] When the Court asked Mr. Pearse during closing argument if he was disputing that the Certificate of Analyst was disclosed on March 7, 2022, he replied that there was no evidence. Mr.

Pearse stated “I’m making no statements against my client’s interest…I’m making no concessions against my client’s interests whatsoever. Whether or not this was served is a live issue”: T-136 lines 34, 35 and 39-41. [ 87 ] During argument, the Crown prosecutor asked for time to file an Affidavit to prove that the Certificate was disclosed. That is not necessary. I am satisfied that the “Disclosed” stamp on the Certificate of Analyst is some evidence that it was disclosed to Mr.

Pearse particularly as no application for disclosure of the certificate was made by the defence. [88] Even if disclosure could have been established by Affidavit after the Crown closed its case, the question remains whether theCrown gave notice to the defence of its intention to produce the Certificate of Analyst at trial in compliance with s. 320.32(2). [89] The Crown argued that disclosure and more formal service are two ways of providing notice.

In this case, the Crown reliedon its assertion that the Certificate was disclosed to defence counsel. [90] According to Goldson, disclosure of the certificate is distinct from giving notice of the intention to produce the certificate attrial. That is so because the Crown can choose to prove the alcohol standard either by relying on the certificate or by viva voceevidence. In either case, the Crown must disclose the certificate.

However, if the Crown intends to rely on the Certificate of Analyst,rather than on the viva voce evidence of the analyst, it must also provide notice to the accused of that intention. [91] The Court in Goldson rejected the argument that because of the Crown’s obligation to disclose the certificates to the defence,the defence has what it needs to challenge the accuracy of the breath samples. The Court held that this reasoning shifts the burden to theaccused.

Further, the accused can bring an application to cross-examine the analyst, only after the Crown gives notice that it intends toproduce the Certificate of Analyst at trial. If the Crown is not required to either call the analyst or tender the certificate, there is noprocess for the accused to challenge the information in it.

Ultimately, according to Goldson, if the Crown wishes to rely on the statutorypresumption of accuracy, it is up to the Crown to prove that the statutory preconditions have been met: paras 75-77. [92] In Goldson, the Court concluded that the obligation on the Crown was not an onerous one and was consistent withParliament’s objective of simplifying the law related to proof of the blood alcohol concentrations.

Based upon that Court’sinterpretation, the conditions would be met if the Crown tenders the two certificates so long as they contain the information set out in s.320.31(1) and the statutory requirements have been met: para 74. [93] Unlike in Goldson, Kvasnak and Blomberg, in the present case the Crown filed the Certificate of Analyst. While there aredistinctions between the cases cited and the present case, the principle in Goldson applies that fairness to the accused requires themeasures be strictly observed if the Crown intends to avail itself of the evidentiary shortcuts. [94] In

summary, the Notice of Intention to produce the Certificate of Qualified Technician was completed indicating it was givento the accused on October 6, 2022. However, on the Certificate of Analyst, the Notice of Intention to produce the certificate is blank onthe copy tendered into evidence. Completion of that portion of the Certificate would have been one way the Crown could haveestablished notice. There may be other ways in which the Crown could prove it has given notice of its intention to rely on the certificateat trial: Turgeon.

In this case, no such evidence was presented, and notice was not admitted by the defence. [95] Accordingly, the Court is unable to conclude that the Crown has met the statutory prerequisites for relying on the Certificateof Analyst at trial. The Certificate of Analyst cannot be received into evidence on the trial proper. Without evidence of the alcoholstandard, the Crown is not entitled to rely on the Certificate of Qualified Technician as conclusive proof of Ms. Kerpan’s BAC.

Therefore, it has failed to prove all the necessary elements of the offence and has not established beyond a reasonable doubt that Ms.Kerpan’s blood alcohol concentration met the legal threshold for conviction: Kvasnak para 60. [96] I find Andrea Kerpan not guilty on count 2. Impaired Driving [97]

Section 320.14(1)(

a) of the Criminal Code provides that everyone commits an offence who operates a conveyance while theperson’s ability to operate it is impaired to any degree by alcohol or a drug or a combination of alcohol and a drug. Evidence thatestablishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. [98] Any circumstance that relates to driving ability is relevant.

Although there may be other possible explanations for thecircumstances, the question for the Court is whether the evidence, taken as a whole, leads to only one reasonable conclusion—that theaccused’s ability to operate a conveyance was impaired by alcohol. In the present case, I have considered the following relevantcircumstances. [99] Ms. Kerpan was observed just prior to 2:00 a.m. operating a motor vehicle in an erratic fashion. The driving includedtravelling over a median which divided opposing lanes of traffic, thereby contravening the rules of the road and posing a risk to others.

She drove onto a sidewalk and directly into a light post colliding with it, after which she backed up and continued driving. She did notstop to examine the vehicle for damage as a driver would ordinarily do. She continued driving at erratic speeds and with random brakingfor a number of blocks in a commercial neighborhood, according to the illustrations by Cst. Siemens on the map [Exhibit P-1]. Therewas no apparent explanation for this type of driving as the weather, road conditions and lighting were good. The conditions are verifiedby the outdoor view from the in-car video. [100] Ms.

Kerpan’s driving represented a marked departure from the norm and, as such, carries more probative weight. Impairmentmay be inferred from behaviour which is far outside the norm: R v Cramer, 2019 SKCA 118 at para 21; R v Hall (1994), (SK CA), 125 Sask R 62 (Sask CA). [101] However, the Court is not to consider bad driving in isolation as the evidence is not to be assessed in a piecemeal fashion.Rather, the Court should consider the nature of the driving along with all other relevant evidence.

The question is whether, on the wholeof the evidence, it has been established beyond a reasonable doubt that the accused’s ability to drive was impaired by drugs or alcohol. [102] I accept much of Cst. Siemens’s observations of Ms. Kerpan. She had difficulty grasping her driver’s licence indicatingreduced fine motor skills. Her eyes were glossy, bloodshot, and droopy, typical of someone who has consumed alcohol. She had delayedmovements indicative of a slowed response or longer reaction time. She had difficulty entering the patrol car, but that could be explainedby being handcuffed at the time.

[103] The officer observed slurred speech, but in cross-examination, he acknowledged that her slurring of words could not be heardon the in-car video. In the patrol car, Ms. Kerpan made a number of comments to the police officer. Although the quality of the soundon the video is not ideal, it was not apparent to me that Ms. Kerpan slurred her words or had distorted speech. Her questions of theofficer and responses to him were appropriate. However, Cst. Siemens interacted with Ms. Kerpan in close proximity, while she was stillin her vehicle.

In the course of his work, he has had experience with other intoxicated people and their manner of speaking. Discrepancies between the in-car video evidence and a police officer’s observations do not necessarily result in the rejection of thepolice officer’s evidence: R v Slippery, 2014 SKCA 23, 433 Sask R 183. I accept that Ms. Kerpan displayed some slurring of speech,though not pronounced. [104] It was Cst. Siemens’s testimony that Ms. Kerpan was polite and compliant. The in-car video confirmed her calm demeanour. [105] At the police station, during the observation period, Cst. Siemens noticed Ms.

Kerpan had delayed reactions, exaggerated armmovements and slurred verbal responses to his questions. She repeated herself and smacked her lips as if they were dry, another sign ofalcohol consumption. No video was presented of the observation room. [106] While walking between the breathalyzer and the observation rooms, Cst. Siemens observed Ms. Kerpan’s “uncoordinated andcompromised movements”. At one point she walked into a bench. The officer testified that Ms.

Kerpan “kind of staggered a bit to theleft” and then “a bit to the right”, describing it as “snaking along” the hallway. [107] Two video sequences [Exhibit P-3] showed Ms. Kerpan walking between the observation room and breathalyzer rooms at3:10:53 hours and at 3:34:04 hours. Cst. Siemens pointed out that Ms. Kerpan appeared to have compromised balance and shifted fromside to side as she walked. I reviewed the video footage and could not detect the staggering that Cst. Siemens described.

However, Ms.Kerpan did not walk in a completely straight line but subtly changed direction or swayed as she walked. [108] In R v Smyth, 2016 SKQB 214 at para 35, Kalmakoff J, as he then was, on appeal stated that proof of impaired driving abilitydoes not require evidence of gross physical symptoms. He went on: [35] …As noted in R v Bush, 2010 ONCA 554 at para 47, 101 OR (3d) 641 slight impairment to drive relates to a reduced ability insome measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time,judgment, or regard for the rules of the road.

It must be remembered that a person’s judgment and reaction time can be detrimentallyaffected by a level of alcohol consumption that may not be manifested in observable conduct such as the manner of walking and talking:R v MacDonald (1996), (SK KB), 146 Sask R 306 (Sask QB). [emphasis mine] [109] Cst. Siemens testified he did not initially detect the odour of alcohol from Ms. Kerpan as he was masked due to public healthconcerns. Rather, he noticed the odour of alcohol after she had been in the vehicle for an “extended period of time.” The officer’sevidence on this point is somewhat undermined by the fact that Ms.

Kerpan was placed in the patrol car immediately after the intoxicatedmale passenger, who had emitted a strong smell of alcohol, had been removed. The odour of alcohol in the vehicle could have beenattributed to the intoxicated male passenger. [110] Cst. Siemens was asked in examination-in-chief “And did she tell you that she had consumed any alcohol that night?” Theofficer responded “She did. I believe she had said she had up to four drinks that night.”: T-46, lines 13, 14. [111] During the traffic stop, Cst. Siemens was entitled to check Ms.

Kerpan for sobriety or for the purpose of making a demand: s.320.31(9) of the Criminal Code. However, the Court has no context for Ms. Kerpan’s statement regarding her alcohol consumption. Ido not know when the statement was made, if it was elicited by the officer or if it was spontaneous.

According to the chronology of histestimony, it appeared to the Court that the statement was made in the observation room. [112] Because the accused’s statement regarding her alcohol consumption was made to a person in authority, a voir dire ought tohave been entered into if the Crown intended to have the Court admit the statement for the truth of it. No voir dire was sought. Evenspontaneous or unprompted statements are subject to the voluntariness test under the confession rule: R v Erven, (SCC),[1979] 1 SCR 926. [113] No objection was made by the defence to the Crown’s question.

The obligation to seek a determination of voluntariness restswith the Crown and not the defence. Absent a clear waiver by the defence, the duty arises even in the face of silence: R v Gonsalves,2022 ONSC 6004. Defence counsel’s silence on the issue does not amount to a waiver: R v Park, (SCC), [1981] 2 SCR64 at p 74. Therefore, I disregard Ms. Kerpan’s statement to Cst. Siemens regarding her alcohol consumption. [114] Before departing the scene, the officer searched Ms. Kerpan’s vehicle and seized two 355 ml aluminum cans, one with 4%alcohol and one with 4.5% alcohol, one empty and the other full and unopened.

I also take into account that Ms. Kerpan had anintoxicated passenger with her. [115] I must look at all the evidence, cumulatively, including positive, negative, and neutral evidence that bears on the issue ofimpairment. I recognize that aberrent driving, by itself, would not be sufficient upon which to convict, however, it carries considerableweight. The question is not whether there are other possible explanations for individual circumstances, but whether the evidence as awhole leads to only one reasonable conclusion. [116] The nature of Ms.

Kerpan’s driving indicates a reduced ability to perform complex motor function, diminished perception,delayed reaction time, a lack of judgment, and blatant disregard for rules of the road. [117] Taking into account the evidence, as a whole, including Ms. Kerpan’s egregious driving; the good weather, road and lightconditions; the time of night; that she had with her an intoxicated passenger; that two alcohol cans, one empty and one full, were found inthe vehicle; that she had glossy, slightly bloodshot, droopy eyes; she had difficulty grasping her driver’s licence; she displayed delayed

and exaggerated movements; she had slightly slurred speech; at the police station her conversation was repetitive; she appeared to have a dry mouth; and she exhibited slight swaying when walking, the only reasonable conclusion to be drawn is that Ms. Kerpan’s ability to operate a conveyance was impaired to some degree by alcohol or a drug. [ 118 ] I therefore find Ms. Kerpan guilty of impaired operation of a conveyance on count 1. ____________________ D.C. Scott, J